Mitchell v. State

• Decision Date: 28 June 1902
• Citation: 32 So. 687,134 Ala. 392
• Parties: MITCHELL, JUDGE, ET AL. v. STATE EX REL. FLORENCE DISPENSARY. POWERS v. MAYOR, ETC., OF CITY OF FLORENCE.
• Court: Alabama Supreme Court

32 So. 687

134 Ala. 392

MITCHELL, JUDGE, ET AL. v. STATE EX REL. FLORENCE DISPENSARY.

POWERS v. MAYOR, ETC., OF CITY OF FLORENCE.

Supreme Court of Alabama

June 28, 1902

Appeals from circuit court, Lauderdale county; E. B. Almon, Judge.

Mandamus by the state, on the relation of the Florence Dispensary against J. J. Mitchell, judge, and others, and action by the mayor and aldermen of the city of Florence against. W. B Powers for the violation of an ordinance. From judgments against defendants in each case, they appeal. Heard together on account of identity of law points involved. Judgments in each case reversed.

These two cases are submitted together, inasmuch as they involve the construction of the same statute. The case of Mitchell judge, et al., against the State ex rel. Florence Dispensary was instituted by the Florence Dispensary filing a petition addressed to Hon. E. B. Almon, judge of the Eleventh judicial circuit, in which it was averred that the petitioner was a corporation duly organized under and by virtue of the act of the general assembly approved December 10, 1900, entitled "An act to establish and maintain, regulate, and make efficient, a dispensary in Florence, and a branch thereof, in that part of Florence known as East Florence, Lauderdale county, Alabama, 'and to provide for the issuance of liquor licenses in Lauderdale county and the city of Florence until this act goes into effect.' " Acts 1900-1901, p. 288. That on July 1, 1901, the commissioners named in said act, having previously met and organized and elected a manager and branch manager pursuant to the terms of the said act, established in said city a dispensary and branch thereof, as provided in said act. That upon the establishment of said dispensary the petitioner applied to Hon. J. J. Mitchell, judge of probate of Lauderdale county, for a state liquor license for each place of business, as provided by section 18 1/2 of said act, for a period of six months. That at the time of the passage and approval of the act creating the petitioner the license required by law for retail liquor dealers was $275 per annum, or $137.50 from July 1st to January 1st, for each place of business, which sum the petitioner tendered and offered to pay said Mitchell as judge of probate; but that said judge was of the opinion that the petitioner was not entitled to receive the license pursuant to the terms of said special act under which the petitioner was incorporated, and declined and refused to accept the sum of $275 in payment of this license for the period of six months. That said judge was of the opinion that the annual license to be paid to the state by the petitioner was $1,925, to be paid in quarterly installments. That the petitioner paid to the probate judge the sum of $481.25, it being one-fourth of the amount demanded for an annual license, and thereupon said judge issued to the petitioner the said license for three months. That the petitioner is advised, informed, and believes, and so avers, that it has paid to the probate judge the full amount of the license required by law for the period of six months and more, and is, therefore, entitled to receive from said probate judge a state license, or a receipt for the license tax so paid, for the period from July 1, 1901, to December 31, 1901. The prayer of the petition was for a writ of mandamus directed to said Hon. J. J. Mitchell, judge of the probate court of Lauderdale county, commanding him to issue to the petitioner a license or receipt for the period from July 1 to December 31, 1901. To this petition the respondent demurred upon the following grounds: "(1) That the act under which the petitioner claims to have been organized is unconstitutional and void, in that it is in violation of section 2 of article 4 of the constitution of Alabama of 1875; (2) that said act does not seek to confer authority on the city of Florence in its corporate name or capacity, or through its legislative body, to carry on the business of buying and selling spirituous, vinous, or malt liquors, but seeks to confer such special privilege and authority upon petitioner, a corporation, which is to be controlled by certain individuals." This demurrer was overruled, and thereupon the respondent filed an answer, in which he pleaded the unconstitutionality of the act under which the petitioner was incorporated upon the same grounds upon which the demurrer was based. Upon the hearing of the cause the facts averred in the petition were substantially proved. After the introduction of all the evidence the court rendered judgment granting the relief prayed for in the petition, and ordering the writ of mandamus to be issued to said J. J. Mitchell, as judge of the probate court of Lauderdale county, commanding him to issue a license or receipt as prayed for in the petition. From this judgment the respondent appeals, and assigns as error the overruling of the demurrer to the petition, and the rendition of said judgment.

In the case of Powers against the mayor and aldermen of the city of Florence, a prosecution for selling, giving away, or otherwise disposing of spirituous, vinous, or malt liquors in a public place in the city of Florence, against the peace and dignity of the state of Alabama, was commenced against the appellant W. B. Powers by a complaint made out by an affidavit sworn out before a justice of the peace. On the trial before the justice of the peace the defendant was found guilty as charged, and from this judgment of conviction an appeal was taken to the circuit court. In the circuit court the mayor and aldermen of Florence filed a statement or declaration, which, as amended, was in words and figures as follows: "The mayor and aldermen of the city of Florence charge that within twelve months before the commencement of these proceedings W. B. Powers did, within the city of Florence, sell, give away, or otherwise dispose of spirituous, vinous, or malt liquor or intoxicating beverages at a public place, and subsequent to the 1st day of July, 1901, against the peace and dignity of the city, and contrary to its ordinances in such cases made and provided, in words and figures as follows: 'An Ordinance. Whereas the general assembly of Alabama has passed an act providing for a dispensary in the city of Florence to go into effect on the 1st day of July, 1901, and whereas it is the intention and duty of this board to restrict the sale and distribution of liquors in this city in conformity to the provisions of said act: Therefore be it ordained by the mayor and aldermen of the city of Florence, that on and after the 1st day of July, 1901, it shall be unlawful for any one within the corporate limits or police jurisdiction of this city, except as provided in said dispensary act, to sell, give away or otherwise dispose of any spirituous, vinous or malt liquors or intoxicating beverages at or in any hotel restaurant, eating house or any other public place, and for every violation of this ordinance the party shall be fined not less than one hundred dollars and shall also be sentenced to hard labor for the city for not less than thirty days. Be it further resolved that the police force are directed to see that the above law is upheld in spirit and letter. Adopted June 24, 1901.' " To this declaration the defendant demurred upon the following grounds: "(1) That said statement charges no offense against the municipal laws or ordinances of the said city of Florence; (2) that any ordinance of the said city of Florence by which the acts of the defendant complained of or charged are made unlawful or prohibited is unconstitutional, null and void; (3) that any act or statute of the legislature of the state of Alabama by or under which it is sought or attempted to adopt any ordinance of the city of Florence, prohibiting or making unlawful the acts of the defendant set forth or complained of in said statement is unconstitutional, null and void." This demurrer was overruled, and to this ruling the defendant duly excepted. Upon the hearing of the cause there was evidence introduced tending to show that the defendant did sell liquor in the town of Florence, and the ordinance which was set forth in the declaration was proved and introduced in evidence. Upon the introduction of all the evidence the court, at the request of the prosecution, gave to the jury the following written charge: "If the jury believe the evidence beyond a reasonable doubt, they will find the defendant guilty." The defendant duly excepted to the giving of this charge, and also excepted to the court's refusal to give the following charge requested by him: "(1) If the jury believe the evidence, they should find for the defendant." There were verdict and judgment in favor of the mayor and aldermen of Florence, assessing the fine of $100. From this judgment the defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Chas. G. Brown, Atty. Gen., for appellant J. J. Mitchell. Alex E. Walker and Thos. R. Roulhac, for appellant Powers. R. T. Simpson and John T. Ashcraft, for relator appellee. Simpson & Jones, for appellees mayor and aldermen of city of Florence.

McCLELLAN C.J.

The main question presented in each of these cases is the constitutionality of an act approved December 10, 1900 entitled "An act to establish and maintain, regulate, and make efficient, a dispensary in Florence, and a branch thereof, in that part of Florence known as East Florence, Lauderdale county, Alabama. 'And to provide for the issuance of liquor licenses in Lauderdale county and the city of Florence until this act goes into effect.' " Acts 1900-1901, p. 288. In the first place, it is insisted that the act contains two subjects,--the establishment, etc., of a...